UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201500423

_________________________

UNITED STATES OF AMERICA

Appellee

v.

BENJAMIN D. LUNA

Staff Sergeant (E-6), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Elizabeth A. Harvey, USMC.

Convening Authority: Commanding General, Marine Corps Recruit 

Depot/Western Recruiting Region, San Diego, California.

Staff Judge Advocate’s Recommendation: Major Jeffrey V. Munoz, 

USMC.

For Appellant: Frank J. Spinner, Esq.; Lieutenant Christopher C. 

McMahon, JAGC, USN.

For Appellee: Captain Dale O. Harris, JAGC, USN; Lieutenant 

Commander Jeremy R. Brooks, JAGC, USN; Lieutenant Jetti L. 

Gibson, JAGC, USN; Lieutenant Robert J. Miller, JAGC, USN.

_________________________

Decided 9 May 2017

_________________________

Before CAMPBELL, RUGH, and HUTCHISON, Appellate Military Judges

_________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

HUTCHISON, Judge:

A panel of members with enlisted representation, sitting as a general 

court-martial, convicted the appellant, contrary to his pleas, of one 

specification of rape, two specifications of sodomy, four specifications of 
United States v. Luna, No. 201500423

2

indecent acts upon a child, and one specification of indecent liberties with a 

child, in violation of Articles 120, 125, and 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 920, 925, and 934. The members sentenced the 

appellant to 20 years’ confinement and a dishonorable discharge. The 

convening authority approved the sentence as adjudged.

As his lone, original assignment of error, the appellant contends the 

evidence is legally and factually insufficient to support his convictions.1 We 

specified an issue regarding whether the military judge erred in admitting 

propensity evidence in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 

2016). We agree with the appellant that as to one Article 134, UCMJ,

specification the evidence does not support a finding that the offense occurred 

“on divers occasions” and take corrective action in our decretal paragraph. 

Although we find error in the military judge’s use of charged offenses as 

propensity evidence, we conclude the error was harmless beyond a reasonable 

doubt. Thus, following our corrective action, we conclude the findings and 

sentence are correct in law and fact and that no error materially prejudicial 

to the appellant’s substantial rights remains. Arts. 59(a) and 66(c), UCMJ. 

I. BACKGROUND

In 1997 the appellant married Sally,2 who had two children from a 

previous relationship, Veronica and Albert. Veronica was three years old 

when the appellant and her mother married. Between 2003 and 2004 the 

family moved to Camp Pendleton, California, where they lived in base 

housing. By December 2005, the appellant and Sally had two more 

daughters, Betty and Nancy. 

Veronica testified at trial that the appellant sexually abused her in their 

Camp Pendleton home between March 2004 and March 2007, when she was 

between the ages of 11 and 13. Although her mother was never home while 

the abuse occurred, some of her siblings were. Betty testified that when she 

was about eight years old, she saw the appellant standing in his bedroom 

fully clothed with Veronica lying on the bed, naked from the waist down.3 The 

abuse took many forms and continued until early 2007, when Veronica told 

 

1 In a supplemental summary assignment of error, the appellant argued the 

military judge erred in instructing the members regarding reasonable doubt. In

accordance with the holding in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017),

we summarily reject the supplemental assignment of error. United States v. Clifton, 

35 M.J. 79, 81-82 (C.M.A. 1992). 

2 All names are pseudonyms.

3 Albert, on the other hand, testified that the appellant was never alone with 

Veronica or Betty when his mother was not home, and the appellant never showered 

with him or any of his sisters. Record at 578.
United States v. Luna, No. 201500423

3

her mother. That disclosure was precipitated by a severe spanking Veronica 

received from the appellant over wearing makeup. After the spanking, the 

appellant left the house to calm down. While he was gone, Sally came home 

and Veronica told her that the appellant had hit her with a belt and further 

disclosed that she had been molested.4 

Upon the appellant’s return home, Sally confronted him, kicked him out 

of the house, and telephonically reported the abuse to the appellant’s father. 

The appellant drove to his father’s house, approximately two hours away, and 

there the two men had a heated argument.

After a brief period where the appellant intermittently slept in his car, in 

his garage, and at a friend’s house, he and Sally reconciled, remained 

married, and the family continued living together.5 However, by November 

2011, the marriage had soured. The appellant filed for divorce, and it became 

final in May 2012. Sally was awarded full custody of their children, but the 

appellant continued to see them and continued to participate in family 

events. The appellant was also present for the birth of Veronica’s son, Jimmy, 

in March 2012. He walked Veronica down the aisle when she married in 2013 

and attended Jimmy’s first birthday party in March 2013. 

In September 2013, the appellant had another child, Billy, with his new 

girlfriend, Misty, whom he had met in 2012. Sally learned of Misty and Billy 

through social media in December 2013, and subsequently reported the prior 

molestation of Veronica to NCIS in February 2014. At trial, Sally testified 

that she waited to file the report because she did not want to humiliate 

Veronica, she wanted her children to have a father, and she feared the family 

 

4 Sally testified that as early as late 2006, she sensed something was wrong with 

Veronica and that she twice asked Veronica whether anyone had ever touched her 

inappropriately. Each time Veronica denied it. Veronica testified she denied the 

abuse when asked because she was afraid she would get in trouble and lose her 

family.

5 Testimony diverged on exactly how long the appellant remained away from the 

home following his confrontation with Sally. The appellant deployed in 2008 and the 

family moved to Pasadena, California to be closer to both the appellant’s and Sally’s 

families. Upon the appellant’s return from deployment, he was selected for drill 

instructor duty which required him to go through drill instructor school and then 

work arduous hours at Marine Corps Recruit Depot (MCRD) San Diego. As a result, 

from 2009 until 2012, the appellant routinely stayed in quarters at MCRD during the 

week and would return to his family on the weekends or in between recruit training 

cycles. During that timeframe, the family moved to several different houses in and 

around Pasadena and Murrieta, California. While the appellant and Sally 

maintained a sexual relationship, filed joint taxes, and the appellant’s name 

remained on the several leases for off-base housing, the nature of the appellant’s 

work often kept him away from the family home for extended periods of time.
United States v. Luna, No. 201500423

4

would lose their base housing. Veronica testified that she did not report the 

incident sooner because she was afraid her family would fall apart and did 

not believe the appellant would molest her sisters, as they were his biological 

children.

II. DISCUSSION

A. Factual and legal sufficiency

We review questions of legal and factual sufficiency de novo. Art. 66(c), 

UCMJ. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The

test for legal sufficiency is “whether considering the evidence in the light 

most favorable to the prosecution, a reasonable fact finder could have found 

all the essential elements beyond a reasonable doubt.” United States v. 

Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002) (citations and internal quotation 

marks omitted). In weighing questions of legal sufficiency, the court is “bound

to draw every reasonable inference from the evidence of record in favor of the 

prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) 

(citations omitted).

The test for factual sufficiency is “whether, after weighing the evidence in 

the record of trial and making allowances for not having personally observed 

the witnesses” we are “convinced of the accused’s guilt beyond a reasonable 

doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

The appellant claims the following facts render his conviction factually 

and legally insufficient: (1) the alleged molestation occurred over 10 years ago 

at a time when Veronica’s memory was susceptible to manipulation, and her 

testimony was the “sole basis” for conviction; (2) Veronica continued to have a 

familial relationship with the appellant until 2013; and (3) the appellant 

denied molesting Veronica.

Despite the delay in reporting, we find Veronica’s account of the sexual 

abuse credible, as she clearly described all of the charged offenses in 

definitive and compelling detail. Although there were instances where 

Veronica could not recall specific, ancillary details about the instances of 

abuse, her memory regarding the nature and quality of the appellant’s 

actions that formed the basis of the charges was convincing.

Veronica provided detailed testimony about the appellant’s penis 

penetrating her outer labia. She testified that she was at least partially 

naked, on her back, in her parents’ bed. She further testified that she cried 

out in pain when the appellant penetrated her—at which time he stopped 

and said they would try again when she was older. 

Veronica also testified that the appellant forced her to place his penis in 

her mouth in her parents’ bedroom and shower. Notably, on one occasion, the 

appellant covered his penis in an edible lubricant and forced Veronica to 
United States v. Luna, No. 201500423

5

perform oral sex on him.6 Veronica also testified that the appellant performed 

oral sex on her, explaining, “[h]e used to just lay me on the bed and then 

spread my legs and perform oral sex . . . . I remember watching him.”7

Additionally, Veronica testified that the appellant, on numerous 

occasions, laid her on his bed in her underpants while he rubbed stretch 

mark lotion onto her thighs, moving his hands up her legs toward her vagina. 

She kept the lotion and gave it to NCIS during the course of the 

investigation. 

Once, while walking through their laundry room, the appellant asked 

Veronica whether she had ever kissed a boy. “[The appellant] picked [her] up 

and put [her] on the washer and told [her] that he was going to show [her] 

how.”8 The appellant then began kissing her with his tongue. When the trial 

counsel (TC) asked whether “this happened more than once,” Veronica 

responded: “That time, specifically, is what I remember.”9 The TC did not 

follow up with another question related to the appellant kissing Veronica, 

and no other testimony or evidence was introduced that would indicate the 

appellant kissed Veronica at any other time. Consequently, we are left with 

doubt that the appellant kissed Veronica on the mouth with his tongue on 

more than one occasion. Accordingly, we will affirm only so much of the 

finding of guilty to that specification that does not include the words “on 

divers occasions.”

Veronica also testified that the appellant showed her his penis in her 

parents’ bathroom and “then [the appellant] . . . tr[ied] to get [her] to . . . jack 

him off . . . telling [her] that the faster that [she] move[s] it, it makes you 

cum.”10 She testified that she saw him ejaculate into the bathroom sink. She 

further testified that on many other occasions the appellant showed her his 

penis but did not masturbate. Finally, Veronica testified that, on several 

occasions, the appellant forced her to touch his penis and rubbed his penis on 

her vagina and inner thighs while in her parents’ bed and in their shower.

Contrary to the appellant’s assertions, Veronica’s testimony, while 

convincing, was not the sole basis for the convictions. Sally testified that after 

she became aware of the abuse in 2007, she took various measures in an 

attempt to prevent its continuance, including asking the appellant to leave 

their home. Betty, the appellant’s biological daughter, who admitted to 

 

6 Record at 451.

7 Id.

8 Id. at 446.

9 Id. at 447.

10 Id.
United States v. Luna, No. 201500423

6

feeling closer to the appellant than to Sally, testified that she saw Veronica 

naked from the waist down, alone in the appellant’s bedroom with the 

appellant. 

Additionally, the appellant’s father testified that the appellant came to 

his home after Sally told the appellant’s father that the appellant had been 

sexually abusing Veronica, and admitted to having made a mistake and

apologized.11 The appellant also sent Sally a series of incriminating text 

messages during their divorce, telling her, “[y]ou’ll be served, you’ll cry and 

get mad, tell your counselor about the past, I’ll go to jail, that’s the last I will 

ever see you and my daughters.”12 In another text to Sally, the appellant said, 

“[y]ou had no problem having me sleep in my car because its [sic] fine that’s 

what I deserved.”13

Moreover, nothing at trial revealed a credible motive to fabricate for 

either Veronica or Sally. While Sally and the appellant had a contentious 

divorce, there is no evidence the divorce motivated Sally or Veronica to report 

the molestation. In fact, the appellant and Sally testified that they 

maintained a cordial, familial relationship during and after the divorce. 

Indeed, the appellant and Sally maintained close contact nearly two years 

after the appellant filed for divorce. Both Sally and Veronica testified that 

they never reported the abuse because they did not want to destroy their 

family. Once Billy was born and the appellant’s new relationship was 

cemented, Sally and Veronica no longer had reason to keep the past abuse 

secret. 

The appellant avers that the news of Billy’s birth so upset Sally that she 

took Veronica to NCIS, “where she provided details which had never been 

previously disclosed to anyone.”14 This argument is not persuasive. Although 

there is strong evidence to suggest that Sally was motivated by Billy’s birth 

to report the appellant and persuade Veronica to share the details of her

abuse with NCIS after the appellant moved on with a new family, we are 

 

11 The appellant’s father was a reluctant government witness and stated that he 

did not desire to testify. During direct examination he admitted to being “so 

infuriated with the information that [he] got hours earlier” concerning the abuse, 

that he struck the appellant after the appellant arrived at his home and told the 

appellant, “I’m your father, this is something I can’t get you out of.” Record at 516-17. 

The appellant’s father also testified that the appellant told him, “Dad, I mean, what 

can I tell you . . . [i]t’s not like that” and referring to Sally, “[y]ou are going to believe 

that person?” Id. 

12 Prosecution Exhibit (PE) 4.

13 PE 5.

14 Appellant’s Brief and Assignment of Error of 20 Jul 16 at 7 (citation omitted).
United States v. Luna, No. 201500423

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convinced that the underlying facts regarding that abuse are true. Indeed, 

the appellant concedes that Sally confronted him about the abuse as soon as 

Veronica made the initial allegations in 2007. It was only Sally’s desire to 

keep the family together—no longer viewed by Sally as a possibility after the 

birth of Billy—that prevented a timely report. 

Likewise, the delay in reporting does not lead us to doubt Veronica’s 

testimony. She testified that throughout and after the abuse the appellant 

forbade her from reporting it, leading her to believe she would lose her family 

if she told anyone.15 As noted supra, although she did not report the abuse to 

law enforcement until much later, Veronica confirmed to her mother in early 

2007 that the abuse had occurred. 

We also find no credible evidence that Veronica’s memory was 

manipulated or corrupted. A defense expert on memory manipulation 

emphasized during his testimony that memories are most easily 

contaminated in preschool-aged children.16 However, Veronica was between 

the ages of 11 and 13 at the time of the abuse—far more mentally developed 

than a toddler. The expert also did not personally interview Veronica and did 

not specifically conclude that her memory had been contaminated. 

The appellant next contends that Veronica’s continuing relationship with 

the appellant belies her allegations of molestation. We do not speculate as to 

why Veronica remained in contact with the appellant after the abuse 

occurred, but we recognize there are many reasons a victim might maintain a 

relationship with a perpetrator, especially in a familial setting. Importantly, 

for several years after the abuse, Veronica was a child who lived with her 

mother. As long as Sally continued to maintain a familial relationship with 

the appellant, so too, necessarily, would Veronica. Additionally, Veronica 

suggested several such reasons during her testimony, including that she 

feared harming the appellant’s relationship with her sisters—the appellant’s 

biological daughters—and she did have some happy childhood memories of 

the appellant as her father.17

Finally, in light of all the other evidence, especially the appellant’s own 

text messages to Sally implying he was at fault and could be jailed for his 

actions, we find the appellant’s testimony self-serving and unreliable. 

Additionally, we note the appellant’s version of events corroborates much of 

the other witness testimony. The appellant admits to being alone with 

 

15 Record at 452-53.

16 Id. at 661.

17 Id. at 501-03.
United States v. Luna, No. 201500423

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Veronica, disciplining her with a belt, being confronted by Sally, and driving 

to his father’s house where he apologized for some conduct. 

As a result, and with the exception of the “on divers occasions” language 

in Specification 2 under Charge III, noted supra, we are convinced that when 

viewed in a light most favorable to the prosecution, a rational trier of fact 

could have found each element of each of the specifications proven beyond a 

reasonable doubt and we, ourselves, are convinced beyond a reasonable doubt 

of the appellant’s guilt to each of the specifications. 

B. Propensity evidence

Before their deliberations on findings, the military judge instructed the 

members concerning their use of charged sexual misconduct, pursuant to 

MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 414, SUPPLEMENT TO MANUAL 

FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), as evidence of the 

appellant’s propensity to commit the other charged sexual misconduct: 

Evidence that the accused committed the sexual assault 

alleged in any of the specifications under the three charges 

may have no bearing on your deliberations in relation to the 

other specifications unless you first determine by a 

preponderance of the evidence, that is more likely than not, the 

offenses alleged in that specification occurred. If you determine 

by a preponderance of the evidence the offense alleged in one of 

the specifications under the three charges occurred, even if you 

are not convinced beyond a reasonable doubt that the accused 

is guilty of that offense, you may nonetheless then consider the 

evidence of that offense for its bearing on any matter to which 

it is relevant in relation to any other specification. You may 

also consider the evidence of that specification for its tendency, 

if any, to show the accused’s propensity or predisposition to 

engage in sexual assault.18

We review the admissibility of evidence under MIL. R. EVID. 414 for an 

abuse of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010).

“Whether a panel was properly instructed is a question of law” we review de 

novo. United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (citations

omitted).

In Hills, the military judge granted a government motion under MIL. R.

EVID. 413 to admit all of the charged conduct as evidence of Hills’ propensity 

to commit the sexual assaults with which he was charged. Hills, 75 M.J. at 

352-53. Hills’ charged misconduct involved a single victim and a single course 

 

18 Id. at 764-65; Appellate Exhibit LVIII.
United States v. Luna, No. 201500423

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of conduct, with Hills committing several offenses over the course of a couple 

hours while his victim passed in and out of consciousness. Our superior court 

found that a military judge was “operat[ing] under an erroneous view of the 

law when he admitted the charged offenses as [MIL. R. EVID.] 413 evidence to 

show [the a]ppellant’s propensity to commit [other] charged offenses, and 

thus abused his discretion.” Id. at 355. Since Hills, military appellate courts

have struggled with defining the breadth and scope of the decision.19

However, in United States v. Hukill, the Court of Appeals for the Armed 

Forces clarified that:

the use of evidence of charged conduct as [MIL. R. EVID.] 413 

propensity evidence for other charged conduct in the same case 

is error, regardless of the forum, the number of victims, or 

whether the events are connected. Whether considered by 

members or a military judge, evidence of a charged and 

contested offense, of which an accused is presumed innocent, 

cannot be used as propensity evidence in support of a 

companion charged offense. 

__ M.J. __, No. 17-0003/AR, slip op. at *6 (C.A.A.F. May 2, 2017).

Although Hills dealt with MIL. R. EVID. 413, the analysis under MIL. R.

EVID. 414 is the same.20 Therefore, we hold that because “evidence of the 

charged sexual misconduct was already admissible in order to prove the 

offenses at issue,” the application of MIL. R. EVID. 414—“a rule of 

 

19 See United States v. Tafoya, No. 20140798, 2017 CCA LEXIS 107, at *3, 

unpublished op. (A. Ct. Crim. App. 14 Feb 2017) (summary disposition) (finding Hills’ 

application in a case tried before a military judge “significantly different” and finding 

“no concern that appellant's constitutional rights, including the presumption of 

innocence, were somehow eroded by the military judge's consideration of propensity 

evidence”); United States v. Guardado, 75 M.J. 889, 896 (A. Ct. Crim. App. 2016)

(discussing the scope of the Hills decision and holding that Hills “prohibit[s], under 

all circumstances, giving a propensity instruction based on a charged offense”) 

(emphasis added); United States v. Mancini, No. 38783, 2016 CCA LEXIS 660, at *36,

unpublished op. (A.F. Ct. Crim. App. 7 Nov 2016) (noting the “ultimate holding in 

Hills would [not] have been different had the charged offenses involved multiple 

victims or differing offense dates”).

20 See United States v. Tanner, 63 M.J. 445, 448-49 (C.A.A.F. 2006) (noting the 

similar legislative history of MIL. R. EVID. 413, its “companion rule,” and finding that 

MIL. R. EVID. 414, like MIL. R. EVID. 413, establishes a presumption in favor of 

admissibility of evidence of prior similar crimes, in order to show predisposition to 

commit the designated crimes.); United States v. Bonilla, No. 20131084, 2016 CCA 

LEXIS 590, at *22-23, unpublished op. (A. Ct. Crim. App. 30 Sep 2016) (analyzing 

propensity evidence admitted under MIL. R. EVID. 414 using the same standards 

applied to evidence admitted under MIL. R. EVID. 413).
United States v. Luna, No. 201500423

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admissibility for evidence that would otherwise not be admissible—was 

error.” Hills, 75 M.J. at 352.

As a result, the military judge’s instruction, while modeled on the 

Military Judges’ Benchbook,21 was error and “implicate[d] ‘fundamental 

conceptions of justice’ under the Due Process Clause by creating the risk that 

the members would apply an impermissibly low standard of proof”—a 

preponderance of evidence standard—and thereby “undermin[e] both ‘the 

presumption of innocence and the requirement that the prosecution prove 

guilt beyond a reasonable doubt[.]’” Id. at 357 (quoting United States v. 

Wright, 53 M.J. 476, 481 (C.A.A.F. 2000)). Where an instructional error rises

to a constitutional dimension, we review the error to determine if it was 

harmless beyond a reasonable doubt. United States v. Kreutzer, 61 M.J. 293, 

298 (C.A.A.F. 2005). A constitutional error is harmless beyond a reasonable 

doubt if the error complained of did not contribute to the verdict obtained. 

United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002). In determining, 

then, whether the military judge’s erroneous instruction contributed to the 

verdict, we must consider the “whole record.” Delaware v. Van Arsdall, 475 

U.S. 673, 681 (1986).

Since Hills, several courts have found no prejudice, despite the erroneous 

admission of charged misconduct as propensity evidence. In United States v. 

Bonilla, No. 20131084, 2016 CCA LEXIS 590, unpublished op. (A. Ct. Crim. 

App. 30 Sep 2016), the Army Court of Criminal Appeals upheld Bonilla’s

convictions for sexual assault, finding that the burden of proof had been 

reinforced throughout the trial, the victim’s account of the sexual assaults 

was corroborated by physical evidence, and the TC did not reference the 

propensity evidence in his argument. Similarly, the Air Force Court of 

Criminal Appeals found an erroneous propensity instruction to be harmless 

beyond a reasonable doubt after concluding that the victim’s testimony was 

credible, the propensity evidence was not a focus of the prosecution, and the 

appellant’s admissions supported the findings. United States v. Harrison, No. 

38745, 2016 CCA LEXIS 431, at *34-36, unpublished op. (A.F. Ct. Crim. App. 

20 Jul 20 2016), aff’d, No 17-0063/AF, 2017 CAAF LEXIS 91 (C.A.A.F. Feb.

13, 2017) (summary disposition).

In our only previous decision applying Hills, we set aside a chief petty 

officer’s convictions for sexual assault, abusive sexual contact, and assault 

consummated by battery after finding the military judge admitted charged 

misconduct as propensity evidence pursuant to MIL. R. EVID. 413 and then 

provided the same erroneous instruction found in Hills. United States v. Ellis, 

No. 201500163, 2016 CCA LEXIS 516 (N-M. Ct. Crim. App. 30 Aug 2016). We 

 

21 Dept. of the Army Pamphlet 27-9 at 1105-06 (10 Sep 2014).
United States v. Luna, No. 201500423

11

noted that while the government’s case was strong, “it suffered some of the 

same weaknesses that concerned the CAAF in Hills”—a lack of physical 

evidence, no eyewitnesses, and inconsistent statements from the victims. Id. 

at *10-11. As a result, we could not be “certain, beyond a reasonable doubt, 

that error did not contribute to Chief Ellis’s convictions.” Id. at *11.

After considering the record as a whole, we find the facts of this case 

distinguishable from both Hills and Ellis and conclude that any 

error surrounding the admission of propensity evidence in this case to be 

harmless beyond a reasonable doubt. As we noted supra, Veronica’s 

testimony was compelling and was corroborated by Betty and the appellant’s 

own incriminating text messages. Moreover, the TC did not reference the 

propensity instruction or refer to propensity evidence during either his 

closing argument or in rebuttal. Rather, the TC reiterated, time and again, 

the government’s burden of proving each and every element of every 

specification beyond a reasonable doubt. Consequently, we are convinced 

beyond a reasonable doubt that the propensity instruction did not contribute 

to the findings of guilty or the appellant’s sentence.

C. Reassessment of sentence 

Having set aside a portion of the appellant’s conviction, we must reassess 

the sentence. Courts of Criminal Appeals (CCAs) can often “modify sentences 

‘more expeditiously, more intelligently, and more fairly’ than a new courtmartial[.]” United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013) 

(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). In such cases, CCAs 

“act with broad discretion when reassessing sentences.” Id.

Reassessing a sentence is only appropriate if we are able to reliably 

determine that, absent the error, the sentence would have been at least of a 

certain magnitude. United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). A

reassessed sentence must not only “be purged of prejudicial error [but] also 

must be ‘appropriate’ for the offense involved.” United States v. Sales, 22 M.J. 

305, 308 (C.M.A. 1986). 

Under all the circumstances presented, we find that we can reassess the 

sentence and that it is appropriate for us to do so. The penalty landscape is 

unchanged. The maximum punishment remains life without the possibility of 

parole, and setting aside “on divers occasions” language in one specification 

does not lessen the appellant’s punitive exposure. Moreover, we have 

sufficient experience and familiarity with child sexual abuse offenses to 

determine reliably what sentence would have been imposed at trial. Finally, 

although the appellant was sentenced by members, the remaining convictions 

for rape, sodomy, indecent acts and indecent liberties capture the gravamen 

of the appellant’s criminal misconduct. Indeed, the members sentenced the 
United States v. Luna, No. 201500423

12

appellant based on evidence of a single incident of kissing Veronica. See 

Winckelmann, 73 M.J. at 15-16.

Taking these facts as a whole, we can confidently and reliably determine 

that, absent the error, the members would have imposed the same sentence. 

We also conclude that the adjudged sentence is an appropriate punishment 

for the modified offenses and this offender—thus satisfying the Sales

requirement that the reassessed sentence not only be purged of error, but 

appropriate. Sales, 22 M.J. at 308. 

III. CONCLUSION

The guilty finding to Specification 2 of Charge III is affirmed except for 

the words “on divers occasions.” The remaining findings and the sentence as 

approved by the CA are also affirmed. 

Senior Judge CAMPBELL and Judge RUGH concur.

 For the Court 

 R.H. TROIDL 

 Clerk of Court